Friday afternoon 10th February: We just got the great news from Ms Mwesigwa that, having come to take her to the airport, the guards left empty-handed because she told them her lawyer was putting in new evidence and that she did not agree to go back! 

They threatened that next time she is given a flight they will force her onto the plane - but hopefully by then the courts will have ruled her case should be considered properly and she should be released! As soon as we have any more news we will be in touch!

 Best wishes, Sian for Asylum from Rape

<asylumfromrape@womenagainstrape.net>

1. These are appeals, by the appellants, against the decision of the First-tier Tribunal (Judge Amanda Kelly), sitting at Hatton Cross on 7 August 2015, to dismiss appeals by a family who are all citizens of Pakistan, and, apart from the youngest, born there.

2. The judge, in accordance with established, if slightly old-fashioned practice, referred to the appellants by their ordinal numbers; but I think it will be clearer if I describe them by their positions in the family. The husband was born in Pakistan in 1966, and came here on a visit visa in 2004: as it is said to have been valid till 2009, I can only suppose it was a multiple-entry one. However, he did not leave after six months, or at all, but was joined in 2005 by his wife, born in 1972, and their sons, SM, born 1 July 1999, and N, born 21 October 2001. There was no further contact between them and the Home Office till 2010, when an application for indefinite leave to remain was first rejected for lack of a fee, then refused on its merits, a decision maintained on reconsideration in 2011. On 30 June that year their daughter A was born here.

3. A further application was made in 2012, and refused in 2013: following an application for judicial review, that decision was reconsidered, resulting in the decisions under appeal, to refuse all the appellants leave to remain on 8 August 2014. Miss Jegarajah realistically conceded, first that the parents had no basis of stay in their own right, apart from the position of the children; and second, that at A’s age her best interests must lie in staying with her parents, wherever they went.

4. Law and Rules  It follows that the present appeal is really about the two sons. The relevant provisions are first s. 117B of the Nationality, Immigration and Asylum Act 2002, the only parts with which I am concerned being

(1) The maintenance of effective immigration controls is in the public interest.

(and)

(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.
5. There is no question but that both sons are ‘qualifying children’, having been here for over seven years by the date of the decision (see s. 117D); nor that, on the judge’s findings, their parents have a ‘genuine and subsisting parental relationship with them’. So far as the sons’ own position is concerned, the judge referred to paragraph 276ADE of the Rules: the relevant part being this:

276ADE  (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant: 
…
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK 

6. Authorities  It follows that the only live question before the judge was whether it would be reasonable to expect either of the sons to leave the United Kingdom. The issue on this appeal is whether she was right to answer that question, in each case, by balancing their interests against what she quite reasonably described as the ‘blatant disregard’ shown by their parents for the immigration laws of this country. Mr Bramble seeks to uphold the judge’s conclusion by authorities such as Zoumbas [2013] UKSC 74 and EV (Philippines) & others [2014] EWCA Civ 874. Miss Jegarajah argues that both 276ADE (iv) and s. 117B (6) pose a question which has to be answered for each of the sons on the merits of his own situation, regardless of the parents’ cases.

14. Conclusions This was a case where the parents’ abuse of the immigration system was gross and obvious: if the judge was entitled to balance the public interests against their sons’, as she did, then she was very clearly also entitled to go on to decide against them on the merits. If it were simply a question of an article 8 balancing exercise, or even of interpreting the word ‘reasonable’ as it appears in paragraph 276ADE, then it could not be said that she was wrong to deal with the question before her on that proportionality basis.

15. However, Parliament has chosen to draw a clear distinction in ss. 117B and C, between those who are, and are not liable to deportation. Those liable have to show that the effect of their own deportation on any qualifying child they may have would be unduly harsh; and, if they have been sentenced to four years’ imprisonment or more, ‘‘very compelling circumstances’’ over and above that. This is the “more rigorous and unyielding regime” referred to at paragraph 19 of Treebhawon . 

16. As the Tribunal went on to say in that decision, a different public interest is recognized in the case of those not liable to deportation, and the effect is set out at paragraph 20: when Parliament said that, in cases covered by s. 117B (6), the public interest did not  require the deportation of those with a qualifying child who it would not be reasonable to expect to leave the United Kingdom, they meant exactly what they said.

17. It seems quite clear from the decision in Treebhawon itself, and from the juxtaposition of ss. 117B and C, that ‘reasonable’ in s. 117B (6) means reasonable from the point of view of the qualifying child. While courts and tribunals have to balance the different aspects of the child’s own interests, taking into account the situation of the family as a whole, as the judge did in this case, we are not required, in a case covered by that sub-section where deportation is not in issue, to balance those interests against those of society. That is of course something which will still have to be done in cases where there is no qualifying child; and, where any children have been here for less than seven years, very much in the light of Parliament’s prescription of that as the qualifying period for consideration solely on their own merits.

18. It is equally clear from the judge’s decision that, considering each of the sons’ cases from their own point of view, she would have found that it would not be reasonable to expect either of them, and particularly SM, to leave the United Kingdom. The result is that both their appeals are allowed: while both the parents’ and A’s would otherwise have to be dismissed, they are allowed too.

Download the full judgment: http://tinyurl.com/gmesxpe

Implications of the recent judgment of the Supreme Court in R

ASK v The Secretary of State for the Home Department [2017] EWHC 196 (Admin) (09 February 2017)

(i) The issues
1.  The issue in this case concerns an allegation that in 2013 the Claimant - "ASK" - was unlawfully detained in an Immigration Removal Centre ("IRC") pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts.

2.  The case raises a number of issues.

3.  First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19 (" O v SSHD") and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45 (" Das"). In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC.
4.  Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained?

5.  Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law?

6.  Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends?

7.   Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 ("MHA 1983") what is meant by " prompt" transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee?

8. Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent ( ex post facto) expert reports which rely upon earlier notes and clinical reports.
(ii) Conclusion on the evidence
9.  Notwithstanding the range and complexity of the legal issues raised I have ultimately concluded, on the evidence, that howsoever the legal complaint is formulated, the claim fails. I can summarise my conclusions in the following way:

Published on Bailii, 09.02/2017, http://tiny.cc/uiv3iy

1.1 Basis of Claim
1.1.1 Fear of persecution or serious harm by the state or non-state actors because the person is Sikh or Hindu.

Published on Refworld, 09/02/2017

http://www.refworld.org/docid/589c78314.html

Trends for Last Month January 2017

Deteriorated Situations: Cameroon, Côte d'Ivoire, South China Sea, Bosnia And Herzegovina, Kosovo, Ukraine, Mexico, Yemen

Improved Situations: Gambia

Outlook for February 2017  -  Conflict Risk Alerts: None - Resolution Opportunities: None

Amid shifting global dynamics, the war in Yemen saw another serious escalation with the Saudi Arabia-led coalition launching a new campaign to regain territory, while fighting intensified in eastern Ukraine at the end of the month. The U.S. and China exchanged harsh rhetoric over the South China Sea, and the new U.S. administration’s decision to build a wall on its border with Mexico sparked tensions with its southern neighbour. Domestically Mexico also saw a swell of popular anger triggered by fuel price increases. In the Balkans, political tensions spiked in Bosnia and between Kosovo and Serbia. Meanwhile in Africa, soldiers mutinied repeatedly across Côte d’Ivoire and Cameroon’s government hardened its repression of protests in the country’s Anglophone regions. On a positive note, West Africa’s regional bloc ECOWAS successfully pushed for a peaceful handover of power in Gambia.

Read the full report: International Crisis Group, http://tinyurl.com/hrls83b

The Supreme Court's recent decision in Mirza and others v Secretary of State for the Home Department [2016] UKSC 63 makes clear that s.3C of the Immigration Act 1971 does not automatically extend a person's leave to remain. Where leave expires in between the defective application and the fresh one an applicant will simply have run out of time for correction.  Section 3C of the Immigration Act 1971 extends a person's leave to remain pending determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. 

In the case of Mirza and others v Secretary of State for the Home Department [2016] UKSC 63 the Supreme Court considered how section 3C applies where an application is made in time, but for some reason is procedurally defective.  All three applied for judicial review of the Secretary of State's decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the rules.

The Supreme Court unanimously dismissed the appeals and upheld the Court of Appeal's judgment.  Lord Carnwath, who gave the ruling judgement however echoed the concern of the Court of Appeal as to the need for greater rationalisation and simplification of the immigration rules and regulations, which are a tangled web and easy to misinterpret, even for those who are vigilant. Moreover, he indicated that not only is there need for simplification, but there is also need for greater flexibility on the part of the Secretary of State to exercise some discretion in favour of those who are currently penalised for simple errors.

Read more: Gherson Immigration, http://tinyurl.com/zf83oro

Plans to construct a new detention centre for immigrants near Glasgow Airport have been rejected by councillors. The Home Office wanted a new 51-bed “short-term holding facility” in Abbotsinch Road for those awaiting removal. It was proposed after the closure of the Dungavel IRC in Lanarkshire was announced. But almost 300 letters of objection were sent to Renfrewshire Council over the proposed new site, permission for which councillors unanimously refused. They said it would be “detrimental to the economic development of the Glasgow Airport Investment Area”.
 
West of Scotland MSP Ross Greer, who campaigned outside Renfrewshire Council last year prior to the initial decision, said: “I'm glad to have stood with campaigners against detention centres, new or old. "Regardless of this decision though, refugees and immigrants were always going to be the losers while immigration policy is decided at Westminster. “The UK government must begin treating vulnerable people with dignity and respect and not like criminals, but given that this is the same Home Office which paid for disgusting billboards telling refugees and immigrants to ‘go home’ and which regularly deports people back to situations where they are in clear danger, I wouldn’t hold my breath.”

Source Scottish Legal News, http://tiny.cc/ona1iy

Quarey, R (on the application of) v SSHD [2017] EWCA Civ 47 (08 February 2017)

Introduction

1. This is an appeal from the decision of the Upper Tribunal, Immigration and Asylum Chamber, made on 1 October 2014. The Upper Tribunal "reluctantly" dismissed the Secretary of State's appeal from the decision of the First Tier Tribunal made on 29 October 2013. The appeal proceeds by way of permission of McFarlane LJ, given on 21 January 2016. The Respondent is a "foreign criminal" within the meaning of United Kingdom Borders Act 2007. The Grounds of Appeal by the Secretary of State are firstly that when assessing whether deportation was proportionate under Article 8 of the European Convention, the FTT failed to have regard to the Parliamentary source and the nature of the State's policy in favour of deportation, and secondly that the FTT failed to "engage meaningfully" with the threefold criteria, or facets of public interest, in deportation set out in authority, namely the risk of re-offending, the need for deterrence and public revulsion in relation to serious criminal activity. For those reasons, it is said the Upper Tribunal should have allowed the appeal.

1. These proceedings have taken too long. The FTT hearing was on 24 March 2014 and the Tribunal's decision was promulgated on 9 April. The Upper Tier Tribunal sat on 22 September and promulgated their determination on 1 October 2014. Thus far, the matter proceeded with reasonable speed. However, there was some delay before the Secretary of State sought to appeal the decision. A re-sealed and amended Appellant's Notice and Grounds was filed and served in February 2015. Permission was refused by Sullivan LJ on 10 April 2015. Following a fire affecting the Appellant's office, it was 10 June 2015 before a renewal application was filed. Permission to appeal and an extension of time was granted by MacFarlane LJ on 21 January 2016. A hearing date was set in late July but the Secretary of State applied to vacate the date and adjourn the hearing, an application then supported by the Respondent. It is by that route that the appeal comes to be heard two years and ten months after the FTT decision, and yet based on evidence from that time.

Analysis

36. Neither the expression of their judgment by the FTT nor the review by an appellate court must be permitted to become a mere "tick-box" exercise. As Elias LJ observed in AM v SSHD, the decision of a tribunal is not to be flawed because when giving their reasons, the tribunal fails to repeat "mantra fashion" the separate identified ingredients of the public interest in deporting foreign criminals, or for that matter, fail to recite expressly the statutory origin of the policy of deportation, and that the statutory origin means that the policy is that of Parliament, not "merely" that of the Secretary of State. Nor is there an obligation on a Tribunal to recite all of the key passages from authority. In the end, with respect to him, it appeared to me that Mr Gullick would have been satisfied with nothing less than such an anxious parade of learning. That is in the end an unhelpful approach. The matter is one of substance, not appearance.

37. The approach has now been clearly set out by Lord Thomas in the passage in Hesham Ali cited above and I need not repeat it. I add only this: it will be wise for a tribunal, in a suitable case, to set out in their balancing exercise the degree of weight they ascribe to the various factors which arise, on the evidence, both for and against deportation. The decision must be transparent and clearly understood.

38. I turn to the substance here. It appears to me that the FTT were alive to the proper considerations. They referred directly to the statutory basis of the obligation on the Secretary of State to deport. They can be taken to understand that the statute, and thus the obligation, carry the authority of Parliament. They cited the critical passages from MF (Nigeria) set out above, which spell out the point that such a one as this Respondent will only succeed in avoiding deportation "exceptionally", meaning where there exist "very compelling reasons". The FTT here also had well in mind the terms of the relevant decision by the Appellant. They had a clear view of the facts and the family circumstances. In considering the nature of the public interest in deportation as it affects this case, they made clear that the low risk of future offending was not the only matter of public interest, noting the passage from Judge LJ in N (Kenya) cited above, and emphasising the need for deterrence of others. On that basis they reached their conclusion.

39. In my judgment, the FTT directed themselves to the proper considerations of law. For those reasons, I would dismiss the appeal.

Lord Justice Briggs:
40. I agree. In this case the FTT chose to demonstrate that it understood the relevant legal considerations by a careful and extended citation from the key paragraphs of the relevant authorities, rather than by seeking to summarise them in their own words, or by setting then out again when applying those considerations to the facts as found. Reading the judgment of the FTT as a whole, I consider it to be reasonably clear that those were the considerations applied during the carrying out of the balancing exercise called for by the Article 8 appeal in this case. The UT was therefore correct to conclude that the FTT's decision was not vitiated by any error of law.

Lord Justice Jackson:
41. I also agree.

Published on Bailii, 08/02/2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/47.html